School policies allowing transgender students use of boys/girls restroom may violate privacy laws

by Michael Foust, Guest Reviewer |

TROY, Ohio (Christian Examiner) – Schools which allow transgender students to use bathrooms and locker rooms of the opposite sex violate the basic privacy rights of other students, endanger students' safety, and leave the school district vulnerable to lawsuits.

So says a seven-page letter from the legal group Alliance Defending Freedom to an Ohio school district that changed its policy late last month to allow a female student who identities as a male to use the boys' restrooms. The controversy has divided the town of Troy, Ohio, as it has other parts of the country.

The Sept. 1 letter was written specifically to the Troy School District Board of Education, although the legal advice applies nationwide.

"We write on behalf of concerned parents and students regarding the recent decision to allow students to use restrooms and locker rooms dedicated to the opposite sex," the letter said. "We seek to reaffirm the commonsense proposition that compelling students to share restrooms and locker rooms with members of the opposite sex violates their right to bodily privacy and would not only lead to potential legal liability for the School District and its employees, but would also violate students' and parents' fundamental rights."

Federal law and even recent federal court precedent support the traditional position that boys and girls should use separate facilities, the ADF letter said.

"Students have the fundamental right to bodily privacy and that right is clearly violated when students -- much less kindergarteners as young as five years old -- are forced into situations where members of the opposite sex may view their partially or fully unclothed bodies," the letter read.

The Ninth Circuit Court of Appeals in 1988 ruled that "[s]hielding one's unclothed figure from the view of strangers, particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity," ADF said.

Many parents in Troy are outraged with the new policy.

"My oldest son is in kindergarten right now and I do not think it's a good idea for them to share bathrooms," parent Tonya Morgan told WTHR-TV.

The district maintains that federal law – specifically, Title IX as interpreted by the Obama administration -- requires it to make the move, but ADF disagreed.

"No court has ever interpreted Title IX as requiring schools to give students access to opposite-sex restrooms and changing areas," the letter said. "Rather, courts have consistently found that schools do not discriminate under Title IX when they limit use of sex-specific restrooms to members of the specified sex."

In 2009, the Ninth Circuit upheld a community college's prohibition on a transgender male student who identified as a female from using the women's restroom. And this year a federal court in Pennsylvania ruled at a university cannot be required to allow transgender students to use restroom of their choosing.

The U.S. Department of Education has interpreted Title IX as forbidding discrimination on the basis of gender identity, but that is not enough to change a school district's restroom and locker room policy, ADF said.

"First, the [Department of Education's] guidance document does not mention access to restrooms nor change the controlling Title IX regulations that authorize sex-specific restrooms," the ADF letter said. "Second, federal regulations make clear that significant guidance documents issued by executive agencies are 'non-binding [in] nature' and should not be 'improperly treated as legally binding requirements.' ... The Department's significant guidance document therefore does not bear the force of law."

School districts have "no federal legal duty" to open sex-specific restrooms and locker rooms to members of the opposite sex, the letter said.

"No 'discrimination' results from protecting young children from inappropriate exposure to the opposite sex in intimate settings, like restrooms or changing areas," it said.

Finally, the letter said, the new policy opens the school district to tort liability – from students and parents.

"Allowing students to use opposite-sex restrooms and locker rooms would seriously endanger students' privacy and safety, undermine parental authority, violate religious students' free exercise rights, and severely impair an environment conducive to learning," it read. "These dangers are so clear-cut that a school district allowing such activity would clearly expose itself to tort liability."

In related news, Ben Hall, a candidate running for mayor and a former attorney for the city of Houston, Texas -- which in 2014 approved a controversial Human Equal Rights Ordinance (HERO) known as the "bathroom bill" -- told a group of business leaders Sept. 3 he opposes the wording of the ordinance he said will do away with gender-based bathrooms.

"Men do not have to look like a woman. Men do not have to wear a dress. ... Men can go into a locker room ... or a gymnasium," he said of the ordinance, in the final few moments of an over hour-long forum moderated by a local news broadcaster. "That's a dangerous law."


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